Lowe v. Commonwealth, 10-CA-619-MR (unpublished):
- The Court noted that the notice of appeal which indicated the appeal was taken from a date prior to even the date of the crime was patently erroneous. “The failure to properly state the order being appealed from could prove fatal to an appeal.” Thus, trial attorneys need to be careful that notices of appeal and supporting documents are correct. “[C]ounsel is cautioned to take appropriate measures to ensure such errors do not occur in the future because sanctions may be imposed under different or more egregious circumstances.”
- The trial court should have instructed on assault 4th degree as a lesser included offense to assault 2nd where there was a factual question as to whether there was serious physical injury. The trial court should not have determined as a matter of law that the victim’s injuries constituted a “serious physical injury.” The extent of injury is a question of fact for the jury to decide.
Citing Unpublished Opinions - CR 76.28(4)(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
Contributed by Emily Rhorer
